359 P.2d 1008 | Wyo. | 1961
Petitioning for rehearing, appellant insists he is entitled to be heard because (a) this court based its opinion upon the trial court’s having dismissed the complaint rather than having given a summary judgment; (b) this court held that appealing from the judgment was an election to stand upon the complaint; and (c) plaintiff was. denied opportunity to present affidavits in accordance with Rule 12(b), Wyoming Rules of Civil Procedure.
The first two of these criticisms are without merit because the judgment simply decreed “that Plaintiff’s Complaint be and the same is hereby dismissed.” Thus, by its plain, certain and unambiguous language it did nothing but dismiss the complaint. It was not in any sense a summary judgment.
The failure of appellant to ask leave to amend the complaint and his appealing from that judgment was clearly an election to stand upon the dismissed complaint.
The opinion sufficiently pointed out the inapplicability of that portion of Rule 12(b), Wyoming Rules of Civil Procedure, which specifies under what circumstances plaintiff should be given time within which to file opposing affidavits, and we see no reason to further amplify upon that question.
Rehearing Denied.